A lawyer has gone up to the Court of Appeal for a determination on whether the Yang di-Pertuan Agong has the power to refuse a request from then-prime minister Muhyiddin Yassin to issue an emergency proclamation four years ago.
Syed Iskandar Syed Jaafar is appealing against the Kuala Lumpur High Court ruling on Feb 15 that dismissed his legal action on grounds the judiciary has no power to look into issues linked to His Majesty's constitutional prerogative.
The appellant's counsel R Kengadharan confirmed the notice of appeal (NOA) was filed yesterday.
The lawyer added that they have written to the High Court to seek the full grounds of judgment that dismissed Syed Iskandar's (above) legal action.
On Feb 15, the Kuala Lumpur High Court dismissed the action, ruling that the issue is not one the court can intervene in.
Judge Wan Ahmad Farid Wan Salleh ruled that the matter involved the issue of the cabinet being constitutionally empowered to advise the king on issues of policy and security.
“Although the Proclamation of Emergency was made by the Yang di-Pertuan Agong under Article 150 (of the Federal Constitution), under Article 40(1)(of the Constitution), the Yang di-Pertuan Agong shall act in accordance with the advice of the cabinet.
“The courts have always considered security matters to have a peculiar texture.
“The cabinet, being the executive arm of the government, possesses intelligence information on security matters that the courts do not have and, therefore, will be in the best position to advise the Yang di-Pertuan Agong,” Wan Farid said.
The judge pointed out that the courts in general have no jurisdiction to hear actions over the Agong’s exercise of constitutional power to proclaim an emergency due to the ouster clause of Article 150(8) of the Constitution.
“While the constitutional provision in respect of the ouster clause would amount to ‘closing the doors of the court’ looks harsh and unjust, the remedy lies in the legislature and not the courts,” Wan Farid said.
The judge made no order as to costs when dismissing Syed Iskandar’s originating summons.
Syed Iskandar’s legal action had sought the court’s guidance over the constitutional issue linked to the king’s decision not to abide by Muhyiddin’s request for an emergency proclamation in 2020.
On Oct 25 that year, it was reported that the Agong decided not to accede to Muhyiddin’s request on the declared reason that the then Perikatan Nasional government was handling the Covid-19 pandemic effectively.
It should be noted that later on Jan 12, 2021, His Majesty agreed to Muhyiddin’s advice for a proclamation of emergency to tackle the pandemic. The pandemic-linked emergency lasted until the latter part of 2021.
Through the suit, Syed Iskandar sought for the court to determine, among others, whether the Agong “has an unfettered discretion not to declare an emergency despite the advice of the prime minister of the federal cabinet to the contrary”.
The plaintiff also wanted the court to determine this through the true construction of Articles 40 and 150 of the Federal Constitution.
Article 40 generally deals with the need for the monarch to act in accordance with the advice of the cabinet or a minister acting under the general authority of the cabinet, among others.
Article 150 deals with the power of the Agong to proclaim an emergency when there is a situation where the security, economic life, or public order in the federation, or any part thereof, is threatened, among others.
It should be noted that Article 150(8) of the Constitution states that no court shall have jurisdiction to entertain or determine any application, question, or proceeding, in whatever form, on any ground, regarding the validity of the proclamation of emergency.
Syed Iskandar was represented by counsel R Kengadharan, while senior federal counsel Shamsul Bolhassan and Liew Horng Bin acted for the government. - Mkini
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